Digital communication is second nature and we rarely think about how easy it is for others to access our emails, texts and other forms of digital dialogues; however, it’s an important thing to consider when maintaining confidence.
ASK YOURSELF THESE QUESTIONS:
- Do your kids use your email account?
- Does your employer have the right to monitor your email?
- Did you print an email and leave it sitting out in a room used by other people?
If the answer to any of these questions is YES, then you have potentially lost confidentiality to your email communications. NY Courts have ruled that there is no attorney-client confidentiality in email communications that fall into any of these categories. The cases where these examples arose are poignant: 1) a divorce action, where the kids used a parent’s email account and thereby caused the parent to lose attorney-client privilege to emails on that account; 2) automatic waiver of attorney-client privilege to emails on a work email account where the hospital employer had a policy that permitted it to monitor email usage without notice; and 3) attorney-client privilege was waived with regard to an email that an individual printed out and left on a desk in a room that was used by multiple people.
Diligence is the key. If you need confidentiality, take reasonable steps to ensure that you are maintaining it.
See also the cases: Wills v. Willis, 79 A.D.3d 1029, 1030-31 (2d Dep’t 2010); Scott v. Beth Israel Medical Center Inc., 17 Misc. 3d 934, 938 (Sup. Ct., N.Y.Co. 2007); Parnes v. Parnes, 80 A.D.3d 948, 950-51 (3d Dep’t 2011); and www.kasterlegal.com
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
You might have heard that Francis Ford Coppola and his family trust have sued a small restaurant in Novato, CA for trademark infringement over the use of the word “TAVOLA”. THE RUB: Coppola’s restaurant Rustic (located on his winery) has a Tuesday evening dinner promoted as “A TAVOLA” and 50 miles south a small restaurant in a shopping center renamed itself “TAVOLA ITALIAN KITCHEN”.
THE PLOT THICKENS… due to Coppola’s USPTO trademark registration of “A TAVOLA” [Reg. No 4002828 for Restaurant services]. Because a trademark registration vests the owner with exclusive use of the registered mark for the designated goods and services… Coppola has a claim against the small restaurant.
BUT THE KINK IN THE PLOT… is that the dictionary definition of the Italian word A TAVOLA , as defined on Coppola’s own website, means ‘to the table’:
“Meaning ‘to the table,’ a tavola is a casual dining experience …. [a] way of enjoying a meal. Like eating at your family’s home, there are no menus. Instead, our servers will come to your table offering an assortment of dishes, from the evening’s meat, poultry and fish selections to pastas, pizzas, salads and desserts.” ( at http://www.franciscoppolawinery.com/visit/dine/rustic/a-tavola)
Since a USPTO trademark registration vests exclusive use rights in trademarked terms, any trademark application should be rejected if the applied for trademark merely describes the goods or services. In this case, A TAVOLA (according to Coppola) means ‘to the table’ which is descriptive of sitting at a table for dinner. The reasoning behind this USPTO policy for not registering descriptive marks makes sense: 1) You can’t keep other folks from using regular dictionary words to describe their own products, nor 2) can you inhibit competition by owning a dictionary word.
The USPTO defines the statutory basis for refusing registration of merely descriptive trademarks on their website:
statutory basis (Trademark Act Section 2(e)(1), 15 U.S.C. Section 1052(e)(1), TMEP 1209 et seq) for refusing registration of trademarks and service marks because the proposed mark merely describes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services. With regard to trademark significance, matter may be categorized along a continuum, ranging from marks that are highly distinctive to matter that is a generic name for the goods or services
The major reasons for not protecting descriptive marks are: (1) to prevent the owner of a mark from inhibiting competition in the sale of particular goods or services; and (2) to maintain freedom of the public to use the language involved, thus avoiding the possibility of harassing infringement suits by the registrant against others who use the mark when advertising or describing their own products. (at http://www.uspto.gov/main/glossary/index.html)
What happened here? How did Coppola get his trademark registration for A TAVOLA anyway? Don’t know. Perhaps there was ambiguity over the definition of the foreign word… although if the small restaurant can hang in there… it seems plausible that Coppola’s trademark registration could be revoked. I’m sure Coppola has his own side to the story and it does seems fishy that the small restaurant appears to have changed its name recently to include the word TAVOLA. If this is true then Coppola could claim that they are trying to appear associated with his restaurant. But the registration of a merely descriptive word as a trademark is a pretty serious no no. Undoubtedly the details are being hashed out now that a lawsuit has been filed.
If I lived close by to TAVOLA ITALIAN KITCHEN I’d go there for dinner to show my support (http://www.tavolaitaliankitchen.com/). Interestingly, they may be seeing a spike in business due to the lawsuit. The public is often keen to support the little guy in cases like this of trademark bullying.
See also: The case is Trustees of the Coppola Family Trust v. Torg Holding Corp., 12-cv-1646, U.S. District Court, Northern District of California (San Francisco); www.kasterlegal.com
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
ps: this post is dedicated to you Janet!!
US Copyright Office set to RAISE FEES in early 2013
April 26, 2012
The US Copyright Office is planning to raise the cost for filing a claim to register works for copyright registration early next year. So, you have plenty of time (a good 9 months) to make the most of the current $35 copyright registration fee.
A $10 fee increase has been proposed for single authors filing an online registration for a single work of their own. And a slightly higher fee increase of $30 has been proposed for works made for hire (ie companies and entities that own and register works of others including employees)
US Copyright Office Registration (*proposed new fees in 2013)
- 1 author, 1 work (same claimant not a work made for hire, eCO filing).. now-$35/New fee* $45
- All other claims eCO filing (including work for hire) .. now-$35/New fee* $64
- Forms PA, SR, TX, VA, SE (paper filing) .. now-$65/New fee* $100
The US Copyright Office explains that these proposed fee increases are necessary to cover a higher percentage of registration costs, while still being in line with its mission to keep the copyright registration accessible and affordable. To be honest, I think it makes sense. I appreciate the cost being lower for artists, writers, musicians and creators registering their own work.
Click here for the entire chart of the US Copyright Office’s Schedule of Proposed Fees. From now through 5:00pm EST on May 14, 2012 the US Copyright Office is accepting comments on the proposed fee schedules at http://www.copyright.gov/docs/newfees/comments/
Take advantage of the $35 registration fee while you can! (you’ve got the rest of 2012!)
See also: The official notice issued by the Library of Congress regarding the proposed fee increase: http://www.copyright.gov/fedreg/2012/77fr18742.pdf. The Registrations highlighted in this posting are just 2 of the 40+ Registration, Recordation and Other Service fees being adjusted by the US Copyright Office’s proposed fee changes; www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
Music Royalties will start being paid for plays on YouTube
April 11, 2012
Did you know that 48 hours of content is uploaded to YouTube every MINUTE?!? It’s hard to even conceive of… but it’s true and without question… heaps of the uploaded content contains music that could and should be earning royalties for plays on YouTube.
In an effort to begin to manage content on YouTube and start paying copyright holders royalties whenever music is included in a video that is played on YouTube, Google (the owner of YouTube) has purchased RightsFlow (a start-up that processes music royalties to help musicians, songwriters and music labels be compensated for their work).
RightsFlow has a music database of over 30 million songs and already processes licenses and royalty payments for thousands of publishers. Integrating the RightsFlow database and technology into YouTube’s content management systems promises to start paying $$ to musicians and music rights holders who have been uncompensated for the use of their music on the site. (Search for any popular band or song on YouTube and you will find an extensive mix of results that include recordings of copyrighted music).
Managing and protecting copyrighted content is an ongoing concern for YouTube. Currently, a copyright holder can request YouTube to remove a video posted to the site that includes copyrighted content that is being used without authorization. However, won’t it be even better… to be paid for the use of your music!
I heard one of YouTube’s Music Managers speak earlier this year and she mentioned a point that is KEY to getting paid royalty payments:
- People (this means YOU)/musicians/record companies… who want their content monetized will have to say so. (ie.. you have to be PROACTIVE to receive royalties)
- See the YouTube Licensing offer: http://www.youtubelicenseoffer.com/
Stay tuned into this issue…
See also: http://rightsflow.com/; http://rightsflow.com/2012/01/youtube-and-rightsflow-opt-in-reminder/ and www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
Using recognizable pictures of other people on your website, blog or publication of any kind requires their express permission (unless they are a celebrity or it is ‘newsworthy’ photo). How do you do this? Ask them for permission AND have them sign a simple agreement giving you permission to use their image. Specify in the agreement the ways, websites, publications etc where the photo will be used.
Here are a few myths and truths on this topic:
MYTH: Just because you took a photo of the bride at her wedding gives you permission to use it on your website
MYTH: Having permission to use a portrait in a book automatically gives you permission to use it in a film
MYTH: It’s okay to use a portrait you took of someone in a public place without permission
TRUTH: Virtually any photo of a celebrity is considered newsworthy and okay to use
Cover your bases and get permission to use the photos you take of other people at the time you take the picture. (These types of agreements are called a Photo Release or Model Release).
See –> http://wp.me/p10nNq-J for more information on Photo releases and www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
PINTEREST emailed me last night that they revised their Terms of Use to address some of the issues I blogged about yesterday by revising their Terms of Use. The new Terms of Use are available at http://pinterest.com/about/terms/
Under these revised terms… you will be granting the site a:
a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users. Nothing in these Terms shall restrict Pinterest’s rights under separate licenses to User Content. Please remember that the Pinterest Service is a public platform, and that other Users may search for, see, use, and/or re-pin any User Content that you make publicly available through the Service. (this is subject to ‘applicable account settings you select’)
GOOD NEWS: the site will no longer be authorized to SELL posted content.
WATCH OUT FOR:
- Your account settings
- Post only your own original work or work you are authorized to distribute and license (or the content can be removed for copyright infringement if the actual owner requests PINTEREST to do so)
- Post only work that you have permission to use in this way
IT’S Good news that these changes have been made. (This is an instance where the Terms of Use have been revised to add protection to the users content). BRAVO!
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com and www.kasterlegal.com
Have you heard the buzz about PINTEREST.COM? Amazingly, PINTEREST is demonstrating record-breaking growth and is now the fastest growing site to reach 10 million users… and it focuses on sharing photographs and visuals.
This obviously raises questions on what you are ‘agreeing to’ when you post a photograph or visual image on the site. Like all large social media websites, PINTEREST, outlines these details in their terms of use.
The bottom line: If you post a photograph to PINTEREST you are virtually giving your image away. By posting content on PINTEREST you grant the site a:
“worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.” http://pinterest.com/about/terms/
(This means that the website can use your image for virtually any, conceivable purpose…. including granting their other users permission to use and exploit your work on the ‘Site, Application, or Services.’)
Three things to watch out for:
- Post only your own original work or work you are authorized to distribute and license (or the content can be removed due to copyright infringement if the actual owner requests PINTEREST to do so)
- Post only work that you want to have FREELY USED by and potentially SOLD to others
- Post only work that you have permission to use in this way
For example, a bride may not have permission from the professional photographer who took the photo to share it in this way and conversely the photographer may or may not have permission from a bride to share her portraits in this way. (Under these terms agreed to when posting a photograph to this site… any picture posted could potentially be sold to another party and end up in an advertisement on the other side of the world without needing permission from or paying $ to the person who posted it on the site. This could get complicated…)
P.S. Keep in mind that the Terms of Use often change frequently for most social media websites… so it’s a good idea to recheck them often.
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
See also:http://pinterest.com/about/copyright/ ; http://rawsocialmedia.wordpress.com/2012/03/19/the-power-of-pinterest-a-great-infographic-guide-to-pintrest-with-some-very-persuasive-data/; http://www.bloomberg.com/video/88836636/ and www.kasterlegal.com
Your in LUCK… a clear synopsis of SOPA legislation
March 16, 2012
An insightful look at the SOPA legislation is provided by Senator Adam Schiff (CA) in his analysis of the three veins of opposition to the intellectual property legislation. These insigts were captured in an interview by www.burbanknbeyond.com.
There were three forms of opposition to the (SOPA) intellectual property legislation.
One that I would characterize as a legitimate concern. People who were worried that it would have an adverse impact on 1st Amendment freedoms. That is not the intent of the bill, I don’t think it’s the effect of the bill, but people have a sincere concern about that, and we ought to address that concern.
But there were two other forms of opposition too, there’s the opposition of people who think whatever you get on the Internet should be free. That it’s sort of a right to enjoy the product of somebody else’s labor if it’s on the Internet.
And that I don’t have much sympathy for. To me it’s no different to steal someone’s song, or someone’s film off the Internet than it would be to steal a CD or DVD from a record store.
The final opposition, and this was in many cases the most formidable, because it was the most heavily financed and organized opposition, was those who like to advertise on pirate sites. That’s where the revenue comes from. And it’s big business. There are millions of eyeballs that go to these pirate sites and companies generate revenue from that. Legitimate companies generate millions of dollars from illegitimate sales.
This (SOPA) is really an effort to go after that. To the critics of SOPA, in the technology sector I would say if you don’t like SOPA then what do you propose? Because we can’t continue to allow billions of dollars of product to be stolen.
This is one area of competitive economic advantage to the United States. We are really good (at creating) intellectual property – at software, at music, at films, and other forms of IP. And we can’t afford to have the area that we really excel ripped off.
For more information see: J. Savageau’s interview at http://burbanknbeyond.com/03/special/rep-adam-schiff-discusses-the-importance-of-sopa/
Copyright Law: Using someone else’s photograph in your blog, website or promo materials
March 9, 2012
If you have reached this posting because you Googled, “is it free to use photographs taken from another person’s website” ….the answer is probably NO… and this post is dedicated to you.
Just because it is EASY to access and copy photographs via the internet doesn’t mean that the photographs are free for the taking. Copying a photograph from another website or online article or blog can easily violate another person’s copyright in the image.
Did you know that every original work (including photographs, designs, poetry, text, music… etc) that is created in the US today, is instantly vested with copyright as soon as it is written down, printed… or ‘fixed in any tangible form’? It’s true. Copyright is instantly vested in fixed, original works and this means that the owner has the right to monetize the work. (ie charge a fee to license or sell a photograph).
As you might guess, the price to license a photograph depends on how you plan to use the image and for how long. For example to license a photograph from Getty Images for 1 month, to use on a social media site costs approximately $160… and $360 for 3 months. (the price varies by image etc). Or hire a photographer to take photographs for you! Or take them yourself.
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
See also: http://www.gettyimages.com
The Naked Cowboy… wearing boots and a trademark
March 1, 2012
It’s not optimal weather here in NYC today for wearing only a cowboy hat, boots, and briefs… in Times Square. But in better weather it’s likely that you have seen (or taken a picture with) the Naked Cowboy. He performs regularly in Times Square wearing only his cowboy hat, boots, briefs and a guitar. The words “Naked Cowboy” are emblazoned on the back of his briefs, on his hat and on his guitar…and the “$” is painted on his boots. Not only does he wear his brand… but he has also registered it as a trademark with the USPTO for Entertainment Services (Reg. No. 3792432). [Click here for photo]
In an attempt to challenge CBS for including a look-a-like character on their daytime show “The Bold and The Beautiful,” the Naked Cowboy sued CBS for trademark infringement. In an episode of the “The Bold and The Beautiful,” one of the characters appeared wearing only briefs, a cowboy hat, and boots while singing and playing the guitar…. and this prompted the Naked Cowboy to sue CBS. An interesting and critical detail to the lawsuit is that the words “Naked Cowboy” did not appear anywhere during the episode, the words were not on the look-a-like, nor were they spoken aloud. Nor did the look-a-like have “$” painted on his boots. Since the words “Naked Cowboy” were not used by CBS, the court held that there was no trademark infringement.
Additionally, the Naked Cowboy challenged the purchase from YouTube of adword advertising for the term “Naked Cowboy”… as well as the use of “Naked” and “Cowboy” as searching TAGS on YouTube. The court held that these actions did not violate the Naked Cowboy’s trademark because the words were not placed on any goods or containers or displayed in a way to indicate source or sponsorship.
If you were wondering if you would violate Trademark Law if you wore only a cowboy hat, boots and briefs… the answer is… NO. This is something you are free to add to your to-do-list. (you won’t violate Trademark Law, anyway)
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
The case: Naked Cowboy, d/b/a Naked Cowboy Enterprises v. CBS and Bell-Phillip Television – Case No. 11 Civ. 0942–BSJ–RLE. Opinion issued by the S.D.N.Y. on February 23, 2012. See also: http://dockets.justia.com
